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Us 9, Renne 5, Hayon 2, Brown 1,
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  SFGTV    [untitled]  

    October 7, 2012
    3:30 - 4:00pm PDT  

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correct. so we propose striking "made." that's good. any other comments on 2-1-a? 2-1-b. my only suggestion would be that we provide for the possibility that we could set a special meeting. i don't think it necessarily has to be at the next ethics commission meeting. i want to give us to set something. >> you want to say regular or special? >> yeah, that's what i was
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thinking, regular or special. actually at a regular or special. >> were we intending to commit ourselves to a time horizon? or outside or the overall time of getting resolution sufficient. to compel us to keep moving. >> i can help, one issue that came out of the last meeting. we handle these matters quickly so people get these records fast. the idea is that we get it at the next meeting we have, that is regularly scheduled. provided we can do it legally under the agenda requirements. there is no issue if you want to set a special meeting for it. but the idea is to say we will do it the next time we meet. so maybe putting the language of "a" meeting would do that. >> or special meeting of x days of receiving it. >> you can change the word "at"
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to the word "by." >> i mean we could say at the next -- no. >> i am concerned about a situation in which we get the referral two days before the meeting. we can't even appropriately notice it in that time frame. and we don't want, so we can't -- so with a hard case we can't bring it. provided it can be scheduled. but we could say, our docket is full and we don't look -- the bye wouldn't allow for that. >> right. >> you want to put a line that says, the commission may schedule a special meeting to hear this matter. something along that line. it gives an opportunity to hear
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it independently of the next meeting? >> that was my thought. i am wondering whether it's worth it. >> commissioner renne. >> i -- when i read that, it struck me that the way it's presently structured, it says, a show-cause hearing. but when you read, at the meeting we can either, a commissioner can hear it or appoint a hearing officer or one of the commissioners to hear it. to hear the show-cause hearing. i guess i had thought that the way to do it, when a referral it will be placed on the calendar at the next regular meeting. or a special meeting. as a matter to be then set for a
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hearing. either before the full commission at its next hearing. or a special hearing. or before a hearing officer who shall report back to the commission at the next scheduled meeting. so there would be clearly a month-and-a-half process probably. but that i think certainly considering the nature of what you are contemplating seems to be the orderly way to do it. >> one more thought. >> mrs. studley. >> i think we should allow the option of having the hearing immediately at the next scheduled meeting. we don't want to preclude ourselves from doing that when that is feasible. but the chair and maybe that it's not scheduled, the hearing, but schedule the matter for hearing or just allocation or
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assign decision of how to assign it. that it comes up and it would be fine to come up and hear it now, or the next meeting. or designate one commissioner or hearing officer or special meeting. >> can i make a suggestion. ? >> yes. >> if you change the next regular to earliest, it's practical. shall read show-cause hearing on the earliest practical of the meeting. >> does that preclude handling it a special way? >> no. >> i like the idea of trying to see if we can get them to us for
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either a hearing or determination of how we will proceed quickly. i think we may feel choked if we had to have the hearing at the next meeting that precludes these possibilities for adjudication. >> i think one concern with sort of leaving it open, you are asking the parties to appear. and if we didn't decide until the meeting that we were going to hear it or defer it. i think that would be somewhat inconvenient. >> that was my concern in thinking it's a two-step process. is that it comes before us and we decide either the full commission is going to hear it. or we are going to have a hearing officer who will report back to us at a specific time. but that would then give an opportunity to give notice to the respondent and the sunshine
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ordinance task force or who the complainant is. when the hearing is going to be and when they have to present whatever testimony or evidence they want to present. >> yeah. i think procedural that makes a lot of sense. what i am trying to balance in my mind is the need for speed and procedural proprietary. say our next meeting is three weeks away and meet and schedule. there are certainly competing concerns. >> are you going to take public comment on this item? >> yes. >> thank you. >> we could --the difference
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between what we require ourselves to do and allow ourselves to do. if we had three weeks and the chair thought it was one that the full commission ought to hear and the docket allowed it. then we could do more than what is required. if this is on the agenda for the commission meeting and three weeks out and everyone was prepared to go forward. it wouldn't stop us from doing that. it may be that scheduling a hearing at the next regular meeting is unmanageable. not just for us but for the party. >> what about mr. st. croix's language. what is going on? >> oh, that the -- >> it's a telephone call that is coming in on the telephone that is here.
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is this a picture of a telephone? and other duties. >> that's another solution. >> i am concerned that mr. st. croix's suggestion is too flexible. >> too flexible. and i am sorry, your proposal was this a competing proposal other than mr. st. croix's of what language to reflect? commissioner renne? >> did you have a proposal as how to modify the language specifically to address the situation you raised?
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>> well, the language i had because i was going through the two-step procedure was this. scheduling a show-cause hearing after receipt of a task force referral. the commission shall place the matter on the calendar for the next regular ethics commission meeting. provided that such can be scheduled pursuant it the compliance of the brown act. at that meeting the matter will be set for a show-cause hearing provided in ii below. >> okay.
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okay. well, i think that's a good suggestion. we made some tweaking. i am trying to figure how to address both of the competing concerns. any comments to 2-2 -- 2-1-b? what about 2-2-a? 2-2-b. i am sorry -- right. 2-2-a or 2-2-b. 2-2 c. >> i had a quick. why is 2-c there?
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i don't understand why it's necessary. >> commissioner studley. >> similar question or in the other provision there is an affirmative statement of the proscuatory role or who should bring forward evidence. if we have a need to say who will do that or how that will be handled. that will be fine addition to this or instead of this. but it seems odd. you know. >> yeah, this is also a vestige of trying to differentiate between how it will happen going forward and how it's happened in the past. because one concern was the role of the executive director in these matters. and frankly the burden. >> right, and what those are to people a few years from now.
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we need to say something about who shall have prosecutory responsibility, i am all for saying that here, and if there is a variety of people, moving forward, it doesn't need to say anything. it's a true statement. but i agree with commissioner renne that it doesn't need to be said here. any other comments on 2-2-c. 2-2-d? i had some conce
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the use of a representation. a non(inaudible) representative. maybe that's common in these sorts of proceedings. but it seemed odd. and it seemed odd that the representative could be a member of the task force. i have no problem of the task force having a role at this hearing. one possibility for the task force, if it chooses to come and explain to us the decision that was made. but to have the task force member represent one of the parties that it adjudicated seemed unusual to me and something that i am presently not in favor of. >> if we said nothing, then people could have someone coming
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before us could have a representative. could they pick -- couldn't they pick anyone they wanted? unless a requirement that it be counsel. and i don't think that's necessary. couldn't they pick anyone they wanted? unless we precluded task force members from being able to do it? >> i guess for example, if in the hearing in front of the board that is going forward on the mirkarimi matter. if one of us would appear on behalf of one the parties. i think it would be a problem. and to have the task force be representing a party that they adjudicated seems like a conflict of interest. and it would not reflect well publicly. >> then in that case, if we agreed with you, we would change it to say, they could not. otherwise they could choose
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anyone you wanted. >> yeah. >> and you suggest to build in a role that the task force could decide as task force they wanted to speak us to what they found. >> right. i can imagine a situation where you needed a designated representative. but as a rule, it see we rathere party if we could? i am certainly, i don't feel strongly about the representative issue. but it did strike me as odd. >> since we will have a record, and a finding. i am trying to think what it is that the movent, the person who brought it would be saying to us. whether it's technical kinds of things they should be entitled to pick someone with more
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technical knowledge. or whether we want the authentic, this is why i needed this. i am trying to picture what we would say. since we would have something in front of us. >> maybe this is my legal hat that doesn't apply in this situation. for example, an attorney when he comes to speak is bound to, if they say they are representing them. we can take what they said and that was the party's word. but any individual who just comes in, doesn't have that same obligation, that their word represents what the person's word intended. i don't know if you have a view on that? whether we need to build into the regulation that a person who appears on behalf of someone else must represent that they can speak for that person? or what sort of caution we might need this? >> i don't really have a strong
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view on that issue. i suppose if they were a party to some proceeding and that a representative was speaking in a way they weren't comfortable with or disagree with, i am sure that party would speak up. >> what if they weren't there? >> that's a consequence of their decision to send a representative and not attend. >> so we just presume if a person comes and says, i am representative for person "x" and that they will be held to what person "x" says. >> that's up to the commission's discretion. just speaking with a lawyer hat on, i am sure that most judges don't ask for a member appearing on the party. >> of course, we are bound by the professional rules. >> certainly a judge doesn't ask for a representation agreement.
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>> they don't ask because they exist. just a member of the public. >> we presume they exist. >> well, yeah. right but if some reason it wasn't correct. there is another forum. but a member of the public who came forth purporting to represent someone. if they didn't have the authority to do so, what would be our recourse? >> yeah, i suppose just being practical. what may be likely, that the party may show up at the next ethics commission meeting. i sent a representative here or someone showed up and purported to be my representative. and that wasn't the case. and i didn't receive a notice for whatever reason, and now i am standing my case. that's one practical possibility. i am not sure how likely. i understand your concern that you don't want people to speak
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without the proper authorization for the party. that's a fair point. >> commissioner renne. >> do you think we unduly complicate it if there is a representative than a complaint complaintant. that they come with a paper authorizing this individual to appear on my behalf. >> that's a good idea. >> is it too difficult for that? to get that, do you think? >> that strikes me as reasonable. commissioner studley. >> if we keep it, i think that is a reasonable addition. i am trying to think whether we need that provision at all. in order to make it possible for the public to pursue their or stand up for the position that they have taken, that they want
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these records. since we will already have something from the task force. explaining the more technical side of it. i would be interested if the public thinks we need this in order to let the people run the string of steps they are entitled to. or preclude someone's capacity to put the issues before us. if they didn't think so, we could take the whole thing out. and see if there is a problem by adding representative. alternatively we can do this, and say this is a model. but i think it's easier to add than subtract it. i would like to hear whether people have seen people bring these forward think it's a necessary idea with the amendment you have talked about or not. >> i think that too is a good
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idea. commissioner hayon. >> my question is why wouldn't we expect that the original complainant and respondent be the ones involved? i don't really understand why they would not appear? or why they would need a representative in this matter? >> i see two potential issues. one, i could see it helpful if for example, the complainant felt like they couldn't express it in a way that is most effective. i think that's a one possibility. the other possibility, if you have an elected official who may want to send a representative. who may handled the issue more directly or something of that nature. that's just speculation.
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but -- >> i am inclined to go forward with it as it is with commissioner renne's amendment. but i would like to hear whether others have reaction. >> i am too. any other comments on 2-2-d? how about 2-2-e. commissioner studley. >> the note they wrote to myself as i read this is, these all -- i am looking at the relevant circumstances. these all sound like bases for finding nonwillfulness or nonviolation. are there other factors that cut the other way? these sound like mitigation and
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why they are important and should be included. there is no parallel. it's a one-way rachet and that's not the right way for us to draft these. what every the opposite of mitigating or exasperating. some 25 cent word that we lawyers throw in. aggregating. it seems unbalanced the way this set is written. i don't have a revision apart from the helpful, of the word that floated to me. but i think we could come up with one while we talked.
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>> what was the intent for a-d? >> with the so-call hearing that it's coming forward that the cause occurred. and this person must show why it didn't or show mitigating factors why it's public record or what have you. that's why they are in there. you can probably end the sentence with, consider all the relative circumstances surrounding the case, period. and consider what is pertinent to at that time as mitigating factors and not have any lists. this list is not meant to be exhaustive. but it might be simpler for you to allow yourself to be able to consider everything.
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>> what if we remove a-d? >> what? >> a-d. >> a period where there is a comma now. i would be fine with that. >> i had the question whether those are intended to be affirmative defenses. in other words one could say, when i get to the "d" for example, whether the respondent spoke with council and relied on that of the employee. that probably is a grounds for which it becomes difficult to say that there has been a violation. we might decide that they should, that the advice they got was wrong. and that we should issue an order saying that the documents shall be produced. but on the other hand, we might say the employee acted in good faith. he went to the city attorney, and the city attorney said, you
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don't need to produce them. >> i think by -- we are not trying to eliminate these. these would all be under the heading of what is relevant. they would be part of the relevant circumstances surrounding the case. the question is whether to enumerate some of them here that we've anticipated as possible defenses. we don't eliminate the explanation or defense if we don't list it here. the question is if it's useful to say that is one of the circumstances that would be appropriate to raise. >> and i think you are both right. actually. i don't think it limits the affirmative defense. i think the problem is some of these are not affirmative.
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the only factor is a penalty. commissioner hayon. >> they are circumstances but not defenses. >> i don't feel strongly if we want to end it surrounding the case and limiting everything beyond. but i have a different issue. >> okay. >> there seems to be a gap. if we decide to refer the show-cause hearing to one commissioner. we don't say what he or she is supposed to do. if he or she reaches a conclusion that supports the finding of a violation.
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i think what is contemplated that, that gets reported to the full commission. and the commission debates whether three of the commissioners want to agree with the hearing. but we don't have a provision for what happens with the hearing officer's determination. >> unless we change the procedure about three commissioners. and if a person gets that responsibility, they hold the hearing and make the determination alone. must we have it come back to the commission? >> but that's what i am saying, if you have just, it contemplates that it could be a hearing officer and not even a commissioner. >> right. >> and what does he or she, or what are they supposed to do once they hold the hearing and reach this determination. >> you are right. >> makes their finding. as

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